8.  The applicants were born in 1935 and 1938 respectively and live in Sainte-Croix-Grand-Tonne and Caen respectively.
9.  On 26 May 1909 A. purchased the Isle of Irus in the Morbihan Bay from R., by contract signed before a notary.
10.  By a decision of 25 September 1909, the Prefect of Morbihan authorised A. to build a dyke on a parcel of maritime public property situated on land belonging to the municipality of Arradon for the purposes of installing a four-metre by four-metre approach ramp on it from which he could reach the Isle of Irus, in particular, by boat.
11.  By a decision of 25 August 1911, the Prefect of Morbihan authorised A. to enlarge the dyke. The relevant parts of the decision read as follows:
“... From the point of view of conformity with the requirements of the Highways Authority, the dyke – once enlarged as requested – cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public at all times.
Regarding the fee to be charged ... the permittee shall pay an annual fee of 30 francs 40 centimes. ...
...
In the event that this authorisation is revoked, the permittee must, if requested, restore the site to its original state. Should he fail to fulfil this obligation, the authorities shall do so of their own motion and at his expense. Any advance payments shall be reimbursed by the permittee on the basis of instruments enforceable at the Prefect's request ...”
12.  On 2 May 1921 a deed of sale concluded before Mr Maigre, a notary, was published in the Vannes Mortgage Registry. By that deed, A. transferred ownership of the Isle of Irus to Mr S.
The registration of this deed by the Mortgage Registry, in so far as it relates to the dyke in particular, reads as follows:
“... Entry into possession – The purchaser shall acquire ownership of the Isle of Irus hereby conveyed to him from the date hereof and by virtue of this deed and shall take possession thereof from 1 March nineteen hundred and twenty-one. ...
Mr [A.] declares that by a decision of the Prefect of Morbihan dated twenty-fifth September nineteen hundred and nine and by another decision dated twenty-fifth August nineteen hundred and eleven, he acquired at the place known as Pen-er-men a stretch of land measuring three hundred and thirty-three square metres ninety-eight square decimetres, registered in the land register of the municipality of Arradon under section number 137 for the purpose of building a dyke with a steel ramp measuring four metres by four metres. This concession was granted to him on the express condition that the dyke be accessible to the public and in consideration of an annual fee of thirty francs and forty centimes subject to review every five years. Accordingly, Mr [A.] hereby assigns all his rights relating to this stretch of land to the purchaser together with all structures erected by the vendor thereon and declares that there is no other positive or negative easement ...”
13.  By a decision of 3 February 1938 the Prefect granted S.'s widow, the applicants' mother's aunt, authorisation to occupy the dyke for five years, specifying that the “dyke shall have a total surface area of 333.98 sq. m, but that the condition of accessibility to the public shall reduce the taxable surface area to 303.98 sq. m ... a strip of land running the entire length of the dyke shall be reserved ... as a public right of way”.
14.  The applicants' mother acquired from her aunt, by inter vivos gift drawn up before a notary and published in the Vannes Mortgage Registry on 12 November 1945, a dwelling house built on the above-mentioned dyke:
 
“There appeared before me
Mrs Mangin, widow of Mr S, who has ... made an inter vivos gift to ...
Mrs Mangin, widow of General Brosset, her niece
of the property belonging to her in the municipality of Arradon called the Isle of Irus.
Description: the Isle of Irus hereby conveyed comprises the entire island and all the immovable property of which it is composed, registered in the land registry as an area of twelve hectares ...
Conditions: The gift is made on the following conditions ... The donee shall take the property in its current state without any right of action against the donor on any ground whatsoever and shall enjoy the property from the date hereof, which is the date of entry into possession. ... She shall pay taxes and insurance premiums against fire from the date hereof.
Civil status – authorisation ... The said gift was authorised by the Prefect of Morbihan on the twenty-first September 1945. ...”
15.  By a series of decisions, issued, inter alia, on 6 June 1951, 29 March 1967, 21 December 1977, 27 August 1984 and 10 July 1986, the Prefect of Morbihan authorised occupation of the dyke in question in consideration of payment of a fee. The decision of 1967 refers to renewal of the decision of 1951 authorising occupation of a dyke; those of 1984 and 1986 refer to the dyke and house. The prefect's decision of 10 July 1986 did not authorise occupation of the public property beyond 31 December 1990. The decisions stated that “the dyke cannot interfere with navigation in any way, on condition that it is levelled above the high and spring tide water marks, or with maritime coastal traffic on condition that it is accessible to the public at all times”. The authorisation forms specified that, in accordance with Article 26 and 27 of the State Property Code, “the authorities reserve the right to modify or withdraw the authorisation should they deem it necessary, on any ground whatsoever, without the permittee thereby acquiring a right to claim any compensation or damages in that regard. The permittee must, if required, restore the site to its original state by demolishing the constructions built on the public property, including those existing on the date on which the decision was signed. Should he fail to comply with that obligation, the authorities shall do so of their own motion and at his expense”.
16.  In the meantime, in 1966, the Department of Revenue from State Lands had written to the director of the State Lands Department in Vannes in the following terms:
“You have submitted to me for observations and opinion a request for renewal of temporary occupation of maritime public property made by [the applicants' mother]. This request concerns a dyke of a surface area of 333.98 sq. m, reduced to a taxable surface area of 304 sq. m, on which a dwelling house has been built. The annual fee proposed by the Highways Authority is 100 francs. The case gives rise to the following observations: Article R 56 of the Code of State Property provides that any fee payable to the Treasury Department must take into account the advantages of any kind procured to the concessionaire. In the aforementioned case, there is no doubt that the concession of the dyke in question procures a not inconsiderable advantage to the applicant: in particular, it allows her to save on the capital that would otherwise be invested in the purchase of a building plot in the area in question... In these circumstances I find it fully acceptable to retain a sum corresponding to the amount of interest calculated at the very reduced rate of 5% of the value of the land conceded. ...”
17.  On 15 March 1993 the applicants' mother applied to the Prefect of Morbihan for renewal of the occupancy agreement.
18.  In a letter of 6 September 1993, the Prefect reminded her that the authorisation to occupy the house granted in 1986 had expired on 31 December 1990. He informed her that the entry into force of Law no. 86‑2 of 3 January 1986 on the Development, Protection and Enhancement of Coastal Areas (hereafter “the Coastal Areas Act”), and particularly section 25, prevented him from renewing the said authorisation on the former terms because the use of public property had to take account of the designated purpose of the areas concerned, which ruled out any private use, including dwelling houses. However, having regard to the long period of occupation and the applicants' and their mother's sentimental attachment to the house in question, the Prefect said that he was willing to consider, exceptionally, granting limited authorisation restricting use of the property to strictly personal use and prohibiting any sale or transfer of the land and house, any work thereon other than maintenance, and reserving an option to the State, on expiry of the authorisation, to have the property restored to its original state or to reuse the buildings. He concluded by asking her to let him know quickly whether these conditions met with her approval so that “an illegal situation that had lasted two and a half years could be regularised”.
19.  The applicants' mother refused the offer. By way of counterproposal, she sought a permit to build a dyke that would be valid as a transfer of ownership under Article L. 64 of the Code of State Property (see paragraph 44 below).
20.  On 9 March 1994 the Prefect of Morbihan rejected the applicants' mother's request but maintained his initial offer of an occupancy agreement subject to conditions:
“You have asked me to consider the possibility of having the dyke built on maritime public property that you occupy at Pen-Er-Men reclassified as private property, apparently with a view to acquiring the dyke and the property built on it ...
I regret to inform you that the classic method of conceding property whereby the concessionnee of the property acquired full title, under Article L. 64 of the Code of State Property, to land that had been drained was abandoned by ministerial circular some years ago, on grounds of lack of proven general interest. Your request goes against this policy and I repeat the conditions stipulated in my letter of 6 September with a view to regularising your situation.
Regularisation in this way could be done on the terms set out in the draft agreement attached. I should point out that the property fee will be adjusted upwards in order to take account of the particular nature of the occupancy of the property.”
21.  On 5 May 1994 the applicants' mother applied to the Rennes Administrative Court for the Prefect's decision of 9 March 1994 rejecting her request for a permit to build a dyke to be set aside.
22.  On 4 July 1995 the Prefect of Morbihan informed the applicants' mother that he was considering drawing up an official report recording the administrative offence of unlawful interference with the highway with a view to formally establishing the unlawful occupancy of public property. That official report was drawn up on 6 September 1995 and served on the applicants' mother on 16 November 1995. On 20 December 1995, on the basis of the finding of illegal occupancy of public property and in accordance with Article L. 28 of the Code of State Property (see paragraph 41 below), the Prefect lodged an application with the Rennes Administrative Court for an order against the applicants' mother to pay a fine and restore the property to its original state, that is, prior to construction of the house.
23.  In two separate judgments delivered on 20 March 1997, the Rennes Administrative Court ruled on the application lodged by the applicants' mother on 5 May 1994 (case no. 941509) and the application lodged by the Prefect of Morbihan on 20 December 1995 (case no. 953516).
24.  The court ruled as follows in respect of the applicants' mother's application for the Prefect's decision rejecting her request for a permit to build a dyke to be set aside:
“In accordance with Article L. 64 of the Code of State Property, “the State may concede, on conditions it shall determine ... the right to build a dyke”. Whilst section 27 of the aforementioned Act of 3 January 1986 has reduced the scope of application of that Article, it does nonetheless specify that “land draining carried out prior to the present Act shall continue to be governed by the previous legislation”. Accordingly, the only provisions applicable to the present case are Article L. 64 of the aforementioned Code and the Maritime Public Property Act of 28 November 1963, which provides that ... “subject to any contrary provisions of deeds of concession, land artificially removed from the action of the tide shall be incorporated into the category of maritime public property”. In rejecting the request on the basis of the principles and guidelines laid down in the inter-ministerial circular of 3 January 1973 setting out the policy to be followed for the use of maritime public property, the Prefect – when examining the applicant's particular situation involving an application for a concession – did not err as to the scope of the circular in question, which neither repeals nor amends the above-mentioned legislative provisions but is limited to applying them.
The aforementioned circular, which instructs the authorities responsible for deciding whether or not to grant concessions to build dykes not to transfer title to the plots of land thus created and to accept only installations designed for collective use, to the exclusion of private dwellings, was issued in respect of an area in which the relevant authorities have discretionary power. In referring to the principles laid down in the circular, the Prefect does not appear to have interpreted the legislative provisions inaccurately; nor did he fail to consider the specificity of the applicant's proposal before concluding that there was no special factor justifying an exemption from the instructions analysed above.”
25.  In case no. 953516 the Rennes Administrative Court granted the Prefect's application of 20 December 1995, on the following grounds:
“... The rules governing public property
“... The purpose of prosecuting someone for the administrative offence of interference with the highway is to preserve the integrity of public property. As can be seen from the judgment delivered by the court today in case no. 941506, the land on which Mrs Brosset's dwelling house was built is indeed public property.
The administrative courts base their determination of the substance of artificial public property on the judicial interpretation of any private deeds that may be produced whose examination raises a serious difficulty. In the present case the dyke and the house are not publicly owned property, given the exclusively private use made of them and the fact that they do not belong to a public authority. Accordingly, as it is not seriously disputed that the property in question has been appropriated for private use, it is not necessary to adjourn the application. ...
Whether there has been unlawful interference with the highway
... Whilst Mrs Brosset has full title to the dwelling house occupied by her and maintains that she is therefore not the unlawful occupant of public property, the fact remains that the erection of a permanent structure on public property could not be legally undertaken without either a concession to build a dyke or another type of concession. The investigation into the facts and, in particular, the absence of any documents evidencing that a concession was granted show that the dwelling house in question was illegally built on maritime public property. Accordingly, the Prefect is justified in requesting an order against Mrs Brosset to pay a fine and restore the seashore to its original state prior to the construction of the house ... This must be done within three months of service of this judgment... . On the expiry of that period, Mrs Brosset shall pay a fine of 100 francs per day's delay in the event of failure to comply with the present judgment and the authorities shall be authorised to enforce it at the cost and risk of the offender.”
26.  On 11 July 1997 the two applicants, acting in their capacity as their mother's heirs after her death, lodged an appeal against the judgment delivered in case no. 953516. On 18 July 1997 they appealed against the judgment delivered in case no. 941509.
27.  By a judgment of 8 December 1999, the Nantes Administrative Court of Appeal decided to join the two sets of proceedings on the ground that they were connected and to dismiss the applicants' appeals.
With regard to the application relating to the offence of unlawful interference with the highway, the court noted first of all that Mrs Brosset had died during the proceedings and decided that the prosecution was therefore now extinguished. In respect of the State property proceedings, the Administrative Court of Appeal gave the following reasons for its decision:
“ ... Firstly, it is not disputed that the parcel of land on which the dyke on which the house was built ... was entirely covered by water, independently of any exceptional meteorological circumstances, prior to the draining works undertaken in order to build the dyke. It has not been established, or even alleged by the applicants moreover, that the undrained portion of this land had ever been removed from the action of the tide. The investigation shows, moreover, that the dyke is the result of land draining carried out prior to the entry into force of the aforementioned Act of 28 November 1963 and that, notwithstanding the various authorisations of temporary occupancy granted by the authorities, as this was not done in the manner prescribed for concessions for the construction of a dyke it has not had the effect of bringing this part of the land thus removed from the action of the tide outside the category of maritime public property. In accordance with the principles of inalienability and imprescriptibility of public property, the submissions by Ms Triboulet and Ms Brosset-Pospisil to the effect that the house was built legally and its occupancy accepted by the authorities for a very long time and tolerated even after the expiry of the last authorisation to occupy it do not alter the fact that the land falls within the category of maritime public property.
Secondly, as has been said, the last decision authorising temporary occupancy of the maritime public property ... expired on 31 December 1990. In the absence, since that date, of a lawful title of occupancy, the Prefect of Morbihan is justified in requesting an order against the occupants to restore the site – if they have not already done so – to its original state prior to construction of the house on maritime public property. In disputing that obligation, the applicants cannot properly rely on the number of years of occupancy of the premises or on the fact that the authorities have tolerated the continuation of that occupancy since 31 December 1990 and proposed draft occupancy agreements to Ms Brosset in order to regularise the situation, which, moreover, she has not taken up. ...
Fifthly, [the obligation to restore the site to its original state] does not constitute a measure prohibited by the requirement of Article 1 of Protocol No. 1 that no one shall be deprived of his possessions except in the public interest.”
Regarding the refusal to grant a concession to build a dyke, the Administrative Court of Appeal held as follows:
“... Secondly, as section 27 of the above-mentioned Act of 3 January 1986 provides that draining works carried out prior to enactment of that Act shall continue to be governed by the previous legislation, the provisions codified under Article L. 64 of the Code of State Property according to which “the State may concede, on conditions it shall determine ... the right to build a dyke ...” are applicable.
The Prefect of Morbihan based his decision not to grant Mrs Brosset the requested concession to build a dyke on the guidelines set out in the circular of 3 January 1973 issued by the Minister for Economic Affairs and the Minister for Regional Development on the use of public property other than commercial or fishing ports. He did not discern any general-interest ground in favour of granting the applicant's request.
By instructing the authorities responsible for granting concessions to build a dyke not to allow any plot of land whatsoever falling into the category of public property to be reclassified as private property with a view to transferring full title thereto, the ministers signatory to the circular of 3 January 1973 did not adopt any legal rules amending or supplementing the above-mentioned provisions of Article L. 64 of the Code of State Property but confined themselves to applying them. Accordingly, as stated above, the plot of land in question is State-owned public property. There is no evidence in the case that the Prefect, before reaching his decision, either failed to examine the particular circumstances of Mrs Brosset's request or made a manifest error of assessment in concluding that there was no special feature or general-interest consideration in the case justifying an exemption from the above-mentioned rules”.
28.  On 21 February 2000 the applicants lodged an appeal on points of law against the judgment of 8 December 1999. They submitted that in the absence of proof, which logically they could not have as they had acquired by gift a house already built on a previously constructed embankment, they had shown that the only legal means of building a dwelling house on a parcel of land supposedly falling within the category of public property was to obtain authorisation of temporary occupancy for private use of that land that did not expressly exclude the possibility of such an edifice being built on it. They concluded from this that the construction of a house, of which the authorities were aware and which they had accepted, had resulted in full title to the house passing to the occupants of the land. If this were not the case, it was for the Prefect to provide proof that the draining works undertaken at the beginning of the century had been illegal. The applicants also submitted that the penalty was disproportionate and that, in the absence of justification on grounds of the general interest, compensation should be paid for the damage wrongly caused.
29.  The Government Commissioner pointed out, in the same submissions as those made in a similar case, that the value in today's terms of the purchase price of the house was 655,530 euros (EUR). He continued as follows:
“ ... The appellants have not acquired any property right over their houses; nor have they acquired rights in rem over public property as a result of the successive transfers. Given the precarious situation of the buildings, the market value could not be established without taking account of that essential fact and it is to be hoped that the applicants were duly informed of the position when the purchase deeds were drawn up... . Lastly, and despite the fact that we are not especially enthusiastic about the outcome of this case, we have no alternative but to dismiss the appellants' pleadings. ... They probably committed a tactical error in refusing the Prefect's reiterated offer. Even if they were not exactly delighted by the prospect, it was at least preferable to a straightforward demolition order which will have to be judicially enforced at their expense. All hope is perhaps not lost of renewing contact with the authorities with a view to finding what might be a less drastic solution.
There may be a case for suing the State in tort for allowing occupants of public property to nurture for almost a century the hope that they would not be ruthlessly compelled to demolish their property. It should be pointed out that the prospects of success of such an action are fairly slim, however, given the legitimate protection enjoyed by public property. In any event, it is clear that if the public authority were to be found liable, the offenders would bear a considerable portion of liability too.”
30.  By a judgment delivered on 6 March 2002 the Conseil d'Etat dismissed an appeal lodged by the applicants. It held that they could not rely on any right in rem over the land in question or over the buildings that had been erected on it and that the obligation to restore the land to its original state without any prior compensation was therefore not a measure prohibited by Article 1 of Protocol No. 1.
31.  On 6 August 2002 the director of the Department of Culture and Legal and Political Affairs for the Morbihan département wrote to the applicants in the following terms:
“I have received some information from the Brittany Regional Cultural Affairs Department. It appears first of all that your house was not specifically listed by the Regional Inventory Service when they drew up an inventory for the Vannes-Ouest district in the early 1990s. However, Pen er Men Bay is well documented, as can be seen from a photograph available at the Inventory Service, in which your house appears very clearly. Furthermore, the Inventory Service has told me orally that if an inventory of the Vannes-Ouest district were to be carried out today, your house, and others in the same situation, would definitely be listed.
In any event, the Inventory Service could usefully make submissions on your behalf to the Public Works Department for the département, among others, with a view to protecting the region's cultural heritage if a further threat of demolition were to be made.
As regards, lastly, the possible classification or registration of your house in the supplementary list of historical monuments, you should not count on this, firstly because the State does not consider you as owner and secondly because it is inundated with requests, especially in the Morbihan. For the time being, given that the Public Works Department appears kindly disposed to your problem, I am not particularly worried.”
32.  In 2008 the housing tax on the house came to EUR 584 and the land tax to EUR 708. The applicants produced a valuation of their house prepared by an estate agent in November 2008: “a dwelling house made of stone built in 1905 ... Having regard to the geographical situation of the property, the condition of the building, the surface area, its location on maritime public property and the local property market, and subject to the owners' ability to produce a concession agreement in respect of maritime public property, this property is worth between 800,000 and 1,000,000 euros”.